Opinion of the Court
PERRY, Judge:
The appellant was convicted by a special court-martial of two specifications of larceny and two specifications of housebreaking, in violation of Articles 121 and 130, Uniform Code • of Military Justice, 10 U.S.C. §§ 921 and 930, respectively. He was sentenced to a bad-conduct discharge, confinement for 5 months, forfeiture of $215 pay per month for 5 months and reduction to the lowest enlisted grade. The convening authority approved the sentence but suspended execution of the punitive discharge for 6 months and provided for automatic remission. The United States Army Court of Military Review affirmed without opinion. We granted review to consider the [5]*5appellant’s contention that the court-martial which tried and convicted him was without jurisdiction because the convening authority failed to personally detail the trial judge and counsel for the court-martial. For the reasons hereinafter stated, we conclude that jurisdictional error exists. Therefore we reverse.
Under the procedure here challenged, the convening authority delegated to the staff judge advocate the authority to amend a convening order (containing the names of members which the convening authority had personally detailed) to include counsel and a trial judge when their identities for a specific case were ascertained. Although the convening authority was generally aware of the counsel who represented the parties in various special courts-martial, and was familiar with the trial judges stationed within his command who had been designated as such by the Judge Advocate General of the Army, the convening authority did not personally detail counsel or judge to any specific case. Assignment of the judge to the specific case was left to the judiciary.
The procedure came to light when, during the trial, the military judge observed that his copy of the convening order which detailed a new military judge and both counsel to the trial had not been signed. However, upon inquiry, he discovered that the original of the order was signed. Captain Charles Zimmerman, Deputy Staff Judge Advocate and Acting Assistant Adjutant General was called as a witness for the court to clarify the circumstances surrounding the signing of the appointing order. Captain Zimmerman testified that as an acting assistant adjutant general he signed, on behalf of the convening authority, the convening order in this case and that he had signed the order after the trial had commenced, just prior to the beginning of his testimony. He also described the procedures which were generally utilized by his office and which were followed in this case.1 His testimony reveals that the convening authority did not personally detail the judge or counsel to this or other courts-martial.
Responding to the appellant’s contention that the court-martial lacked jurisdiction, the government argues that the matter of detailing judges and counsel under the pro[6]*6visions of Article 262 and 273 respectively of the UCMJ 4 is ministerial in nature and that performance thereof may be delegated. The government further suggests that these statutes5 only require an “official appointment” rather than a “personal selection.” In contrast, the Government points to Article 25,6 UCMJ, 10 U.S.C. § 825, which tasks the convening authority with detailing court members who, “in his opinion are best qualified for the duty by reason of age, education, training, experience, length of service, and judicial temperament.” Thus, in the Government’s view, unlike Article 25, Articles 26 and 27 do not require the exercise of discretion. We, therefore, are urged to sanction the appointment process employed here as a proper delegation of purely administrative authority. We are satisfied that the government’s approach is not consistent with the intent of Congress.
We observe that the language of both Articles 26 and 27, UCMJ, is prescriptive. Article 26 provides that the convening authority “shall . . . detail a military judge.”7 Article 27 provides that the convening authority “shall detail trial counsel and defense counsel.” On its face, the language in both these Articles appears plain and unambiguous and “does not by its terms permit delegation of this responsibility.” United States v. Bingham, 3 M.J. 119, 123 (C.M.A.1977). On the other hand, we recognize that the language of Article 25, which states that “the convening authority shall detail . . . such members of the armed forces as, in his opinion, are best qualified,” is more explicit than that of the other two articles. Indeed, the Government even concedes that the convening authority’s responsibility under Article 25 is not delegable. When considered in conjunction with the language of Article 25, the language of Articles 26 and 27 assumes an aura of ambiguity. However, we are not satisfied that this difference is a sufficient indicia of an intent to permit delegation. If Congress had intended to permit the convening authority to delegate any or all of the powers of detailing court-martial personnel, it could easily have said so, as it frequently did elsewhere in the Code when permitting an official to delegate powers given him by the Congress. See United States v. Cunningham, 21 U.S.C.M.A. 144, 145, 44 C.M.R. 198, 199 (1971); United States v. Greenwell, 19 U.S.C.M.A. 460, 463, 42 C.M.R. 62, 65 (1970). What we said in United States v. Butts, 7 U.S.C.M.A. 472, 474-5, 22 C.M.R. 262, 264-5 (1957), is particularly apposite here:
The grant of the powers in issue is contained in the Uniform Code. Turning to its provisions, we find that whenever Congress conferred a power upon a particular authority in the court-martial system and intended that authority to give others the right to exercise the power, it [7]*7expressly provided for such designation. Articles 9(a), 22(a)(6)(7), 23(a)(7), 24(a)(4), 71(b), 74(a), 135 and 140. See also United States v. Roberts, 7 U.S.C.M.A. 322, 326, 22 C.M.R. 112; United States v. Schuller, 5 U.S.C.M.A. 101, 104, 17 C.M.R. 101. Speaking of a similar situation in United States v. Simmons, 2 U.S.C.M.A. 105,107, 6 C.M.R. 105, we said: “This singling out of specific officials for the exercise of the power is itself a weighty argument that Congress intended to limit the power to those designated.”
[6]*6(2) When convening a court-martial, the convening authority shall detail as members thereof such members of the armed forces as, in his opinion, are best qualified for the duty by reason of age, education, training, experience, length of service, and judicial temperament. .
[7]*7Added to the careful enumeration by Congress is the fact that established administrative practice contemplates the personal exercise of the powers by the convening authority when he reviews the record of trial. ... In view of the long-standing nature of this practice, we can assume that it was known to and also acquiesced in by Congress when it enacted the Uniform Code. United States v. South Buffalo Ry. Co.,
Free access — add to your briefcase to read the full text and ask questions with AI
Opinion of the Court
PERRY, Judge:
The appellant was convicted by a special court-martial of two specifications of larceny and two specifications of housebreaking, in violation of Articles 121 and 130, Uniform Code • of Military Justice, 10 U.S.C. §§ 921 and 930, respectively. He was sentenced to a bad-conduct discharge, confinement for 5 months, forfeiture of $215 pay per month for 5 months and reduction to the lowest enlisted grade. The convening authority approved the sentence but suspended execution of the punitive discharge for 6 months and provided for automatic remission. The United States Army Court of Military Review affirmed without opinion. We granted review to consider the [5]*5appellant’s contention that the court-martial which tried and convicted him was without jurisdiction because the convening authority failed to personally detail the trial judge and counsel for the court-martial. For the reasons hereinafter stated, we conclude that jurisdictional error exists. Therefore we reverse.
Under the procedure here challenged, the convening authority delegated to the staff judge advocate the authority to amend a convening order (containing the names of members which the convening authority had personally detailed) to include counsel and a trial judge when their identities for a specific case were ascertained. Although the convening authority was generally aware of the counsel who represented the parties in various special courts-martial, and was familiar with the trial judges stationed within his command who had been designated as such by the Judge Advocate General of the Army, the convening authority did not personally detail counsel or judge to any specific case. Assignment of the judge to the specific case was left to the judiciary.
The procedure came to light when, during the trial, the military judge observed that his copy of the convening order which detailed a new military judge and both counsel to the trial had not been signed. However, upon inquiry, he discovered that the original of the order was signed. Captain Charles Zimmerman, Deputy Staff Judge Advocate and Acting Assistant Adjutant General was called as a witness for the court to clarify the circumstances surrounding the signing of the appointing order. Captain Zimmerman testified that as an acting assistant adjutant general he signed, on behalf of the convening authority, the convening order in this case and that he had signed the order after the trial had commenced, just prior to the beginning of his testimony. He also described the procedures which were generally utilized by his office and which were followed in this case.1 His testimony reveals that the convening authority did not personally detail the judge or counsel to this or other courts-martial.
Responding to the appellant’s contention that the court-martial lacked jurisdiction, the government argues that the matter of detailing judges and counsel under the pro[6]*6visions of Article 262 and 273 respectively of the UCMJ 4 is ministerial in nature and that performance thereof may be delegated. The government further suggests that these statutes5 only require an “official appointment” rather than a “personal selection.” In contrast, the Government points to Article 25,6 UCMJ, 10 U.S.C. § 825, which tasks the convening authority with detailing court members who, “in his opinion are best qualified for the duty by reason of age, education, training, experience, length of service, and judicial temperament.” Thus, in the Government’s view, unlike Article 25, Articles 26 and 27 do not require the exercise of discretion. We, therefore, are urged to sanction the appointment process employed here as a proper delegation of purely administrative authority. We are satisfied that the government’s approach is not consistent with the intent of Congress.
We observe that the language of both Articles 26 and 27, UCMJ, is prescriptive. Article 26 provides that the convening authority “shall . . . detail a military judge.”7 Article 27 provides that the convening authority “shall detail trial counsel and defense counsel.” On its face, the language in both these Articles appears plain and unambiguous and “does not by its terms permit delegation of this responsibility.” United States v. Bingham, 3 M.J. 119, 123 (C.M.A.1977). On the other hand, we recognize that the language of Article 25, which states that “the convening authority shall detail . . . such members of the armed forces as, in his opinion, are best qualified,” is more explicit than that of the other two articles. Indeed, the Government even concedes that the convening authority’s responsibility under Article 25 is not delegable. When considered in conjunction with the language of Article 25, the language of Articles 26 and 27 assumes an aura of ambiguity. However, we are not satisfied that this difference is a sufficient indicia of an intent to permit delegation. If Congress had intended to permit the convening authority to delegate any or all of the powers of detailing court-martial personnel, it could easily have said so, as it frequently did elsewhere in the Code when permitting an official to delegate powers given him by the Congress. See United States v. Cunningham, 21 U.S.C.M.A. 144, 145, 44 C.M.R. 198, 199 (1971); United States v. Greenwell, 19 U.S.C.M.A. 460, 463, 42 C.M.R. 62, 65 (1970). What we said in United States v. Butts, 7 U.S.C.M.A. 472, 474-5, 22 C.M.R. 262, 264-5 (1957), is particularly apposite here:
The grant of the powers in issue is contained in the Uniform Code. Turning to its provisions, we find that whenever Congress conferred a power upon a particular authority in the court-martial system and intended that authority to give others the right to exercise the power, it [7]*7expressly provided for such designation. Articles 9(a), 22(a)(6)(7), 23(a)(7), 24(a)(4), 71(b), 74(a), 135 and 140. See also United States v. Roberts, 7 U.S.C.M.A. 322, 326, 22 C.M.R. 112; United States v. Schuller, 5 U.S.C.M.A. 101, 104, 17 C.M.R. 101. Speaking of a similar situation in United States v. Simmons, 2 U.S.C.M.A. 105,107, 6 C.M.R. 105, we said: “This singling out of specific officials for the exercise of the power is itself a weighty argument that Congress intended to limit the power to those designated.”
[6]*6(2) When convening a court-martial, the convening authority shall detail as members thereof such members of the armed forces as, in his opinion, are best qualified for the duty by reason of age, education, training, experience, length of service, and judicial temperament. .
[7]*7Added to the careful enumeration by Congress is the fact that established administrative practice contemplates the personal exercise of the powers by the convening authority when he reviews the record of trial. ... In view of the long-standing nature of this practice, we can assume that it was known to and also acquiesced in by Congress when it enacted the Uniform Code. United States v. South Buffalo Ry. Co., 333 U.S. 771, 774-5, 68 S.Ct. 868, 92 L.Ed. 1077.
Since the Congress did not specifically provide for delegation of the duties therein included, we conclude that Articles 26 and 27 direct that only the convening authority may perform the tasks of detailing judges and counsel.8
Proper designation of the military judge is crucial to the composition of the court-martial. United States v. Singleton, 21 U.S.C.M.A. 432, 45 C.M.R. 206 (1972); Wright v. United States, 2 M.J. 9 (C.M.A. 1976). A failure by the convening authority to properly detail the judge is fatal to court-martial jurisdiction. We hold, therefore, that the purported delegation of power from the convening authority to a subordinate officer to detail the military judge and counsel to the appellant’s court-martial was ineffectual for that purpose as it was contrary to the intent of Congress embodied in Articles 26 and 27, UCMJ. Resultantly, the failure to have a properly detailed trial judge presiding over that court-martial rendered that body jurisdictionally defective. Wright v. United States, supra; United States v. Singelton, supra.
The decision of the United States Army Court of Military Review is reversed. The findings and sentence are set aside. The record of trial is returned to the Judge Advocate General of the Army. A new trial may be held.